PORTLAND, Ore. (AP) — An appeals court on Monday stayed a lower court ruling that blocked President Donald Trump from assuming command of 200 Oregon National Guard soldiers. However, Trump is still prohibited from deploying those troops, at least for now.
U.S. District Judge Karin Immergut issued two temporary restraining orders earlier this month: one barring Trump from calling in troops so he could send them to Portland, and another barring him from sending National Guard members to Oregon, after the president tried to evade the first order by deploying troops from California instead.
The Justice Department appealed the first order, and in a 2-1 ruling Monday, a panel of the 9th U.S. Circuit Court of Appeals sided with the administration. Most said the president was likely to succeed in his claim that he had the authority to federalize troops based on a determination that he could not enforce the laws without them.
However, Immergut’s second order is still in effect, so troops cannot be deployed immediately.
The administration has said that because the legal reasoning behind both temporary restraining orders was the same, it will now ask Immergut to dissolve his second order and allow Trump to deploy troops to Portland. The Justice Department argued that it is not the courts’ role to question the president’s determination of when to deploy troops.
Oregon Attorney General Dan Rayfield, a Democrat, said he would ask for a larger appeals panel to reconsider the decision.
“If today’s ruling stands, it would give the president unilateral power to put Oregon soldiers on our streets with almost no justification,” Rayfield said. “We are on a dangerous path in the United States.”
The Justice Department did not immediately respond to an email seeking comment.
Trump’s efforts to deploy National Guard troops to Democratic-led cities have been mired in legal challenges. A California judge ruled that its deployment of thousands of National Guard troops to Los Angeles violated the Posse Comitatus Act, a long-standing law that generally prohibits the use of the military for civilian policing, and on Friday the administration asked the U.S. Supreme Court to allow the deployment of National Guard troops to the Chicago area.
Mostly small nightly protests, limited to a single block, have occurred in front of the U.S. Immigration and Customs Enforcement building in Portland since June. Larger crowds have appeared at times, including counterprotesters and live streamers, and federal agents have used tear gas to disperse protesters.
The administration has said that troops are needed to protect federal property from protesters, and that having to send additional Department of Homeland Security agents to help protect property meant they were not enforcing immigration laws elsewhere.
Immergut previously rejected the administration’s arguments, saying the president’s claims about Portland being devastated by war “are simply not tied to the facts.” But the appeals court majority — Ryan Nelson and Bridget Bade, both Trump appointees — said more deference was due to the president’s decision.
Bade wrote that the facts seemed to support Trump’s decision “even if the president may exaggerate the extent of the problem on social media.”
Judge Susan Graber, an appointee of former President Bill Clinton, disagreed. He urged his colleagues on the Ninth Circuit to “overturn the majority order before the illegal deployment of troops under false pretenses can occur.”
“In the two weeks leading up to the president’s social media post on September 27, there was not a single incident in which protesters disrupted the execution of laws,” Graber wrote. “It is difficult to understand how a small protest that does not cause disruption could satisfy the standard that the president is incapable of executing the laws.”
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Gene Johnson reported from Seattle.